Saturday, November 4, 2017

Bergdahl sentence: The law of intended consequences

Bergdahl sentence: Obama is still giving the orders

by LAWRENCE
SELLIN, PHDNovember 4,
2017 (Sent to me by my friend Joan Swirsky. I'm posting it because the time-line is significant.)

It was a show trial, but not in the usual meaning of the term.
Bowe Bergdahl was never meant to be punished. The trial was all for show.

It was not, however, mismanagement or incompetence, but arguably
deliberate.

On the night of June 30, 2009, then Army Private First Class Bowe
Bergdahl went missing.

On July 2, 2009, the Pentagon said that
Bergdahl had walked off his base in eastern Afghanistan with three Afghan
counterparts and was believed to have been taken prisoner. Bergdahl's
commanding officers said that
a vigorous, but unsuccessful 45-day search for Bergdahl put soldiers in danger.

During his nearly five years as a captive of the Taliban, the Army twice promoted,
Bergdahl, first to the rank of specialist in June 2010, then to the rank of
sergeant in June 2011.

On May 31, 2014, Bergdahl was released from captivity in
exchange for five senior Taliban commanders held at Guantanamo Bay in a controversial deal
negotiated by the Obama Administration.

In June 2014, Major General Kenneth Dahl was assigned to lead the
Army's investigation into the 2009 disappearance and capture of Bergdahl. In
August 2014, Dahl interviewed Bergdahl. In December 2014, after a comprehensive
legal review, the Dahl investigation was
forwarded to a General Courts Martial Convening Authority, Gen.
Mark Milley, commanding general of Forces Command.

In April 2015, an Article 32 hearing of the Bergdahl evidence was
scheduled for July 8. 2015. An Article 32 hearing
is similar to the civilian evidentiary or
probable cause hearing to determine, after a criminal complaint
has been filed, whether there is enough evidence to require a trial. In June
2015, at the request of the defense, the Article 32 hearing was
postponed until September 17, 2015.

According to one report of
the September 17th Article 32 hearing, Army prosecutors
presented a very weak case in support of the charges against Bergdahl. They
chose not to call any of Bergdahl's enlisted comrades who had a very different
impression of his behavior than the one Bergdahl gave to investigators. Prosecutors
also did not call any witnesses to support the argument that the Army lost men
trying to recover Bergdahl.

Remarkably, the Army allegedly buried recordings
of signals surveillance in Afghanistan from July 1-2, 2009,
days after his disappearance, where Taliban are talking on Bergdahl's own phone
saying he wanted to join them and other recordings where the Taliban, on their
phones, are talking about Bergdahl trying to join them.

In an even more bizarre twist of events, the investigating
officer, Maj. Gen. Dahl, appeared
as a defense witness, where he provided exculpatory
"psychological" evidence, describing Bergdahl as a confused, poorly
adjusted idealist who doesn't deserve further punishment.

The presiding officer of the Article 32 hearing, Lt. Col. Mark
Visger reportedly recommended
a special court-martial for Bergdahl, rather than a general court-martial, the
former being essentially a military version of a misdemeanor court. According
to Bergdahl's lawyer, Eugene Fidell, Lt. Col. Visger called for
unusually light penalties, recommending against both a dishonorable discharge
and confinement.

The following year, the New York Times reported that
the Army's 22-member investigative team, led by Maj. Gen Dahl, which spent two
months interviewing scores of witnesses and compiled the report that formed the
initial basis for prosecuting Bergdahl, never proposed that he should be tried
on the most serious charges.

To an outside observer, it appeared both the prosecution and
defense agreed, early on, that Bergdahl was indeed a confused, poorly adjusted
idealist who didn't deserve further punishment.

It was merely coincidental that President Obama appointed General
Milley to be Chief of Staff of the Army and, within two
months of the Article 32 hearing, Maj. Gen. Kenneth Dahl was promoted to
Lieutenant General.

Future deserters will no doubt take note of how easily Bergdahl's
punishment went from life imprisonment to nothing.

The Bergdahl sentence was clearly an unconscionable travesty of
justice and a slap in the face to all those who have honorably worn the
uniform.

Yet, even before a trial began, the outcome seemed preordained, an
eventual de facto Obama pardon, implemented by an Obama
Pentagon.

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About Me

In college (BA, NYU, 1954), I studied Russian and political science and later served in Korea with United States Army Intelligence. After law school (JD, NYU, 1959) for some 55 years I practiced constitutional and appellate law. From 1972 to 1993 I taught at Brooklyn Law School, where I am now professor emeritus. My courses included Constitutional Law, Appellate Advocacy, National Security, and First Amendment. A bibliography of my writing can be found at my blog of June 29, 2012. See also www.henrymarkholzer.com.